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Court Falls in Line for Hybrid-Witness Protocol

(CN) - The 9th Circuit joined several of its sister courts Tuesday in ruling that a treating physician called as a witness in a trial is exempt from expert-testimony disclosure rules only "to the extent that his opinions were formed during the course of treatment."

"We hold today that when a treating physician morphs into a witness hired to render expert opinions that go beyond the usual scope of a treating doctor's testimony, the proponent of the testimony must comply with [disclosure rules]," Judge Barry Silverman wrote for the San Francisco-based federal appeals court.

The issue of first impression for the circuit was not enough to save Staples Office Super Store from a revived personal injury complaint in Arizona District Court, however.

U.S. District Judge James Teilborg granted summary judgment to Staples in a trip-and-fall case brought by California resident Pamela Goodman. In 2007, Goodman tripped over an end-cap at a Scottsdale Staples and suffered an injury that eventually required several cervical spinal fusion surgeries.

The District Court barred Goodman's experts from testifying at trial because they were also her treating doctors. Teilborg found that Goodman's counsel provided the doctors with additional information and asked them "to opine on matters outside the scope of the treatment they rendered," yet the lawyers never disclosed these materials to Staples.

Goodman had failed to establish a breach-of-duty by Staples, Teilborg found. Because she had neglected to comply with disclosure requirements regarding "hybrid experts," she did not prove that her injuries were caused by the fall, according to the ruling.

The three-judge appeals panel reversed summary judgment, finding that Staples alleged breach of duty is a question for a jury. The panel also reversed the District Court's causation ruling, while agreeing with Teilborg in theory on the disclosure rules for hybrid experts.

"Because the law regarding these hybrid experts was not settled, and because treating physicians are usually exempt from Rule 26(a)(2)'s requirements, we exercise our discretion to apply this clarification prospectively," Silverman wrote. "Because we hold, as a matter of discretion, that Goodman should be allowed to rectify her error by disclosing reports for her treating physicians, we reverse the district court's summary judgment ruling on causation."

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